Garza v. Ryan et al

Filing 70

ORDER: IT IS ORDERED denying Garza's Motion for Authorization to Appear in Ancillary State-Court Proceedings and for Temporary Stay and Abeyance (Doc. 67 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 1/11/17.(MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA
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Ruben Garza,

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No. CV-14-01901-PHX-SRB
Petitioner,

v.

DEATH PENALTY CASE
ORDER

Charles L. Ryan, et al.,

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Respondents.

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Before the Court is Petitioner Ruben Garza’s Motion for Authorization to Appear

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in Ancillary State-Court Proceedings and for Temporary Stay and Abeyance. (Doc. 67.)
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Garza asks the Court to stay and hold his case in abeyance while he pursues state court
relief. He also seeks permission for his federal habeas counsel to appear on his behalf in
state court. Respondents filed a response opposing a stay and Garza filed a reply. (Docs.

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68, 69.) For the reasons set forth below, the motion is denied.

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I.

BACKGROUND

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A jury convicted Garza of two counts of first degree murder for the 1999 shooting

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deaths of Ellen Franco and Lance Rush. The jury declined to impose death for the murder

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of Franco, but authorized the death penalty for the murder of Rush. The trial court

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sentenced Garza to death for the murder of Rush and to life without possibility of parole

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for the murder of Franco. The Arizona Supreme Court affirmed the convictions and

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sentences. State v. Garza, 216 Ariz. 56, 63, 163 P.3d 1006, 1013 (2007). Garza filed a

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post-conviction relief petition, which the court denied without an evidentiary hearing.

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The Arizona Supreme Court denied review.
Garza now seeks a stay so that he can return to state court and present two new

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claims. He argues that Lynch v. Arizona, 136 S. Ct. 1818 (2016) (per curiam), and Hurst
v. Florida, 136 S. Ct. 616 (2016), are significant changes in the law that would probably
overturn his sentence under Arizona Rule of Criminal Procedure 32.1(g).
II.

APPLICABLE LAW
Garza’s habeas petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(b)(1)(A). Although AEDPA does not

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deprive courts of the authority to stay habeas corpus petitions, it “does circumscribe their

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discretion.” Rhines v. Weber, 544 U.S. 269, 276 (2005). The Supreme Court has

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emphasized that the stay and abeyance of federal habeas petitions is available only in

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limited circumstances. Id. at 277. “Staying a federal habeas petition frustrates AEDPA’s

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objective of encouraging finality by allowing a petitioner to delay the resolution of the

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federal proceedings. It also undermines AEDPA’s goal of streamlining federal habeas

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proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court

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prior to filing his federal petition.” Id.

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A writ of habeas corpus may not be granted unless it appears that a petitioner has
exhausted all available state court remedies. 28 U .S.C. § 2254(b)(1); see also Coleman v.
Thompson, 501 U.S. 722, 731 (1991). In Arizona, there are two avenues for petitioners to
exhaust federal constitutional claims: direct appeal and post-conviction relief proceedings
(“PCR”). Rule 32 of the Arizona Rules of Criminal Procedure governs PCR proceedings.
It provides that a petitioner is precluded from relief on any claim that could have been
raised on appeal or in a prior PCR petition. Ariz. R. Crim. P. 32.2(a)(3). The preclusive

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effect of Rule 32.2(a) may be avoided only if a claim falls within certain exceptions and

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the petitioner can justify why the claim was omitted from a prior petition or not presented

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in a timely manner. See Ariz. R. Crim. P. 32.1(d)–(h), 32.2(b), 32.4(a).

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When a petitioner has an available remedy in state court that he has not

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procedurally defaulted, it is appropriate for the federal court to stay the habeas

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proceedings if (1) there was good cause for the petitioner’s failure to exhaust his claims

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first in state court, (2) his unexhausted claims are potentially meritorious, and (3) there is

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no indication that he engaged in intentionally dilatory litigation tactics. See Rhines, 544
U.S. at 277.
III.

ANALYSIS
Garza contends that under Rule 32.1(g) of the Arizona Rules of Criminal

Procedure, the United States Supreme Court’s recent decisions in Lynch and Hurst
provide an available remedy in state court. Rule 32.1(g) provides that a defendant may
file a petition for post-conviction relief on the ground that “[t]here has been a significant
change in the law that if determined to apply to defendant’s case would probably overturn
the defendant’s conviction or sentence.” Ariz. R. Crim. P. 32.1(g).

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Arizona courts have characterized a significant change in the law as a

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“transformative event,” State v. Shrum, 220 Ariz. 115, 118, 203 P.3d 1175, 1178 (2009),

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and a “clear break” or “sharp break” with the past. State v. Slemmer, 170 Ariz. 174, 182,

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823 P.2d 41, 49 (1991). “The archetype of such a change occurs when an appellate court

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overrules previously binding case law.” Shrum, 220 Ariz. at 118, 203 P.3d at 1178. A

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statutory or constitutional amendment representing a definite break from prior law can

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also constitute a significant change in the law. Id. at 119, 203 P.3d at 1179; see State v.

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Werderman, 237 Ariz. 342, 343, 350 P.3d 846, 847 (App. 2015).
In Lynch, 136 S. Ct. 1818, the Supreme Court applied Simmons v. South Carolina,
512 U.S. 154 (1994), to a capital sentencing in Arizona. Simmons held that when future
dangerousness is an issue in a capital sentencing determination, the defendant has a due
process right to require that his sentencing jury be informed of his ineligibility for parole.
512 U.S. at 171.

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In Lynch, the defendant was convicted of murder and other crimes. 136 S. Ct. at

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1818. Before the penalty phase of his trial began, the state successfully moved to prevent

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his counsel from informing the jury that, if the defendant did not receive a death

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sentence, he would be sentenced to life in prison without possibility of parole. Id. at

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1819. The jury sentenced him to death. Id. On appeal, Lynch argued that because the

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state had made his future dangerousness an issue in arguing for the death penalty, the jury

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should have been given a Simmons instruction stating that the only non-capital sentence

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he could receive under Arizona law was life imprisonment without parole. Id. The
Arizona Supreme Court affirmed, holding that the failure to give the Simmons instruction
was not error because Lynch could have received a life sentence that would have made
him eligible for release after 25 years—even though any such release would have
required executive clemency. Id. at 1820.
The United States Supreme Court reversed. Id. The Court reiterated that under
Simmons and its progeny, “where a capital defendant’s future dangerousness is at issue,

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and the only sentencing alternative to death available to the jury is life imprisonment

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without possibility of parole,” the Due Process Clause “entitles the defendant to inform

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the jury of [his] parole ineligibility, either by a jury instruction or in arguments by

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counsel.” Id. at 1818 (internal quotations omitted). The Court explained that neither the

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possibility of executive clemency nor the possibility that state parole statutes will be

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amended can justify refusing a parole-ineligibility instruction. Id. at 1820.

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Lynch does not represent a change in the law. It simply applies existing law to an

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Arizona case. It is not a transformative event of the kind described by Arizona courts in

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interpreting Rule 32.1(g). In Shrum, for example, the Arizona Supreme Court cited Ring

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v. Arizona, 536 U.S. 584 (2002), as a “significant change in the law.” 220 Ariz. at 119,
203 P.3d at 1179. Ring “expressly overruled” Walton v. Arizona, 497 U.S. 639 (1990). As
the Arizona Supreme Court explained, “before Ring, a criminal defendant was foreclosed
by Walton from arguing that he had a right to trial by jury on capital aggravating factors;
Ring transformed existing Sixth Amendment law to provide for just such a right.” Shrum,
220 Ariz. at 119, 203 P.3d at 1179.

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In contrast to the holding in Ring, which expressly overruled precedent and

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invalidated Arizona’s capital sentencing scheme, Lynch did not transform Arizona law.

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The holding does not constitute a significant change in law for purposes of Rule 32.1(g).

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Respondents also argue, correctly, that Lynch would not apply retroactively. Lynch

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applies Simmons to an Arizona capital sentencing. In O’Dell v. Netherland, 521 U.S. 151,

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167 (1997), the Supreme Court rejected the argument that Simmons represented a

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“watershed” rule of criminal procedure that would apply retroactively. Like Simmons,

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Lynch is procedural and non-retroactive. Therefore, Garza is not entitled to retroactive
application of Lynch, and his claim fails to meet the exception to preclusion set out in
Rule 32.1(g).
Finally, Respondents contend that a stay is inappropriate because a claim based on
Lynch would be time-barred. (Doc. 68 at 8.) The Court agrees.
Garza’s habeas petition is subject to a one-year limitations period under §
2244(d)(1)(A). This period expired on August 6, 2015. (See Doc. 9 at 1.) Garza is

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permitted to amend his petition now only if the new claim “relates back” to the original

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petition. See Mayle v. Felix, 545 U.S. 644, 650 (2005). A claim does not relate back

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“when it asserts a new ground for relief supported by facts that differ in both time and

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type from those the original pleading set forth.” Id.

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Garza’s new Lynch claim differs in both time and type from any claim raised in

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his habeas petition. (See Doc. 27.) Garza did not challenge the penalty-phase instructions

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which explained the possible sentences for his murder convictions. Because Garza’s

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claim is untimely and does not relate back to a properly-filed and currently-pending

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claim, any attempt to amend the habeas petition to include the claim would be futile.

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Hurst, like Lynch, did nothing to transform Arizona law. In Hurst, 136 S. Ct. 616,
the Supreme Court held that Florida’s capital sentencing scheme violated Ring. Under the
Florida scheme, a jury renders an advisory verdict while the judge makes the ultimate
factual determinations necessary to sentence a defendant to death. Id. at 621–22. The
Court held that this procedure was invalid because it “does not require the jury to make
the critical findings necessary to impose the death penalty.” Id. at 622. The Supreme
Court simply applied Ring to Florida’s capital sentencing statutes.

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Hurst does not hold, as Garza suggests, that a jury is required to find beyond a

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reasonable doubt that the aggravating factors outweigh the mitigating circumstances.

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Hurst held only that Florida’s scheme, in which the jury rendered an advisory sentence

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but the judge made the findings regarding aggravating and mitigating factors, violated the

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Sixth Amendment. Hurst, 136 S. Ct. at 620.

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Hurst did not address the process of weighing the aggravating and mitigating
circumstances. Indeed, the Supreme Court has held that the sentencer may be given
“unbridled discretion in determining whether the death penalty should be imposed after it
has found that the defendant is a member of the class made eligible for that penalty.”
Zant v. Stephens, 426 U.S. 862, 875 (1983); see Tuilaepa v. California, 512 U.S. 967,
979–80 (1994). In Zant, the Court explained that “specific standards for balancing
aggravating against mitigating circumstances are not constitutionally required.” Id. at 875

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n.13; see Franklin v. Lynaugh, 487 U.S. 164, 179 (1988) (“[W]e have never held that a

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specific method for balancing mitigating and aggravating factors in a capital sentencing

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proceeding is constitutionally required.”).

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In Arizona, in accordance with Ring and Hurst, the jury makes factual findings

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regarding the aggravating and mitigating factors to determine the appropriate sentence.

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Hurst did not effect a change in Arizona law for purposes of Rule 32.1(g).

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Moreover, even if Hurst were a significant change in the law, it does not apply

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retroactively. The Supreme Court has held that “Ring announced a new procedural rule

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that does not apply retroactively to cases already final on direct review.” Schriro v.

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Summerlin, 542 U.S. 348, 358 (2004). Hurst, which applies Ring in Florida, is also nonretroactive. This claim does meet the Rule 32.1(g) exception to preclusion.
Finally, as with Garza’s Lynch claim, a claim based on Hurst is also time-barred
because it does not relate back to anything contained in Garza’s habeas petition.
Although he cites Rhines, Garza indicates that he is not seeking a Rhines stay.
(Doc. 69 at 2.) Even assuming the Rhines framework does not apply, however, Garza is
not entitled to a stay.

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The Court may stay the proceedings as part of its inherent power “to control the

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disposition of the causes on its docket with economy of time and effort for itself, for

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counsel, and for litigants.” Landis v. North American. Co., 299 U.S. 248, 254 (1936). To

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evaluate whether to stay an action, a court must the weigh competing interests that will be

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affected by the grant or denial of a stay, including the possible damage that may result

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from the granting of a stay; the hardship or inequity a party may suffer in being required

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to go forward; and whether a stay will simplify or complicate issues, proof, and questions
of law. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (citing Landis, 299 U.S. at
254–55)). “The decision to grant a stay . . . is ‘generally left to the sound discretion of
district courts.’” Ryan v. Gonzales, 133 S. Ct. 696, 708 (2013) (quoting Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)).
If the requested stay may cause “even a fair possibility” of harm, Garza bears the
burden of establishing “a clear case of hardship or inequity in being required to go
forward.” Landis, 299 U.S. at 255. The Court finds that the relevant factors do not weigh
in favor of granting a stay.

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Garza asserts that “a stay of federal proceedings would advance judicial economy

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and conserve resources.” (Doc. 69 at 7.) This does not constitute a “clear case of hardship

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or inequity” given the Supreme Court’s admonition that staying a federal habeas petition

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frustrates AEDPA’s objectives of encouraging finality and streamlining federal habeas

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proceedings. Rhines, 544 U.S. at 277. Denying the stay would not result in simultaneous

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litigation in state and federal court. To the contrary, as described above, a stay would be

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futile because the new claims under Lynch and Hurst are time-barred and cannot be

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included in an amended federal habeas petition. Therefore, Garza will suffer no prejudice
from denial of the stay and judicial economy will be preserved because the claims will
not be litigated twice.
IV. APPOINTMENT OF COUNSEL
Garza asks the Court to authorize the Federal Public Defender’s (“FPD”) office to
represent him in state court. The Criminal Justice Act provides for appointed counsel to

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represent their client in “other appropriate motions and procedures.” 18 U.S.C. § 3599(e).

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The Supreme Court interpreted § 3599 in Harbison v. Bell, 556 U.S. 180 (2009),

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holding that the statute “authorizes federally appointed counsel to represent their clients

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in state clemency proceedings and entitles them to compensation for that representation.”

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Id. at 194. The Court explained “subsection (a)(2) triggers the appointment of counsel for

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habeas petitioners, and subsection (e) governs the scope of appointed counsel’s duties.”

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Id. at 185. The Court noted, however, that appointed counsel is not expected to provide

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each of the services enumerated in section (e) for every client. Rather, “counsel’s
representation includes only those judicial proceedings transpiring ‘subsequent’ to her
appointment.” Id. at 188.
Harbison addressed the concern that under the Court’s interpretation of § 3599,
federally appointed counsel would be required to represent their clients in state retrial or
state habeas proceedings that occur after counsel’s appointment because such
proceedings are also “available post-conviction process.” Id. The Court explained that §

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3599(e) does not apply to those proceedings because they are not “properly understood as

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a ‘subsequent stage’ of judicial proceedings but rather as the commencement of new

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judicial proceedings.” Id. at 189. As to state post-conviction proceedings, the Court

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noted, “State habeas is not a stage ‘subsequent’ to federal habeas. That state

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postconviction litigation sometimes follows the initiation of federal habeas because a

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petitioner has failed to exhaust does not change the order of proceedings contemplated by

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the statute.” Id. at 189–90; see Irick v. Bell, 636 F.3d 289, 292 (6th Cir. 2011); Lugo v.

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Sec’y, Florida Dep’t of Corr., 750 F.3d 1198, 1213 (11th Cir. 2014), cert. denied sub

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nom. Lugo v. Jones, 135 S. Ct. 1171 (2015) (explaining “a state prisoner is not entitled, as

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a matter of statutory right, to have federally paid counsel assist him in the pursuit and
exhaustion of his state postconviction remedies, including the filings of motions for state
collateral relief . . . ”); Gary v. Warden, Ga. Diagnostic Prison, 686 F.3d 1261, 1274
(11th Cir. 2012) (explaining Ҥ 3599 does not provide for federally-funded counsel to
assist someone standing in Gary’s shoes in pursuing a DNA motion, the results of which
might serve as the basis for an extraordinary motion for a new trial”).

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Nevertheless, this Court has the discretion to appoint federal counsel to represent

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Garza in state court. In Harbison the Supreme Court noted that “a district court may

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determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a

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claim in the course of her federal habeas representation.” 556 U.S. at 190 n.7.

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The Court has determined that Garza is not entitled to a stay to exhaust claims

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arising from Lynch and Hurst. Based on that determination, together with the Harbison

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Court’s discussion of the parameters of § 3599(e), the Court finds it is not appropriate to
authorize the FPD to represent Garza in state court.
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CONCLUSION
Garza is not entitled to a stay. Lynch and Hurst are not significant changes in the

law for purposes of Rule 32.1(g). In addition, the claims are also time-barred, so a stay
would be futile.
Accordingly.
IT IS ORDERED denying Garza’s Motion for Authorization to Appear in
Ancillary State-Court Proceedings and for Temporary Stay and Abeyance (Doc. 67).

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Dated this 11th day of January, 2017.

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